[2021] KECPT 508 (KLR)
The Tribunal found that while the Claimant was not entitled to a refund of the non-refundable share capital of Kshs.20,500/=, he was entitled to a refund of Kshs.44,500/= being his deposits. The Tribunal held that the Claimant had given sufficient notice of his intention to withdraw from the society, as evidenced by...
Source-derived case information.
- Citation
- [2021] KECPT 508 (KLR)
- Parties
- Claimant: George Morara Ntabo; Respondent: NHIF Savings & Credit Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 266 of 2019
- Procedural Posture
- Tribunal Claim / Judgment
- Outcome
- judgment for the claimant in part
- Legal Topics
- Cooperative Societies, Refund of Deposits, Share Capital Non Refundability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Morara Ntabo
Claimant
NHIF Savings & Credit Society Limited
Respondent
Procedural Posture
Tribunal Claim / Judgment
Legal Issues
- 1 Whether the Claimant is entitled to a refund of Kshs.65,000/=.
- 2 Whether the Claimant followed the proper procedure for withdrawal and notice.
- 3 Who should bear the costs of the claim.
Ratio Decidendi
The Tribunal found that while the Claimant was not entitled to a refund of the non-refundable share capital of Kshs.20,500/=, he was entitled to a refund of Kshs.44,500/= being his deposits. The Tribunal held that the Claimant had given sufficient notice of his intention to withdraw from the society, as evidenced by his letter dated 14.6.2017 and subsequent correspondence. The Respondent's own letter acknowledged the withdrawal and proposed a refund timeline, negating its argument that the claim was premature. The Tribunal therefore entered judgment for the Claimant for the refundable amount, with interest and costs.
Court Disposition
judgment for the claimant in part
Orders
- The Respondent shall pay the Claimant Kshs.44,500 with interest at court rates.
- The Respondent shall bear the costs of the claim.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL
AT NAIROBI
TRIBUNAL CASE NO. 266 OF 2019
GEORGE MORARA NTABO ........................…….............................CLAIMANT
VERSUS
NHIF SAVINGS & CREDIT SOCIETY LIMITED.................. RESPONDENT
JUDGMENT
Vide the Statement of Claim dated 8. 5.2019, the Claimant has moved this Tribunal seeking for judgment against the Respondent as follows:
a. Kshs.65,000/=
b. Interest
c. Costs.
The Respondent opposed the claim by filing a Statement of Defencedated 22. 7.2019.
Vide the directions given on 14. 10. 2020, the claim was canvassed by way of written submission. The Claimant filed his submissions on 26. 10. 2020 while the Respondent did so on 18. 11. 2020.
Claimant’s Case
It is the Claimant’s case that at all times material to the claim, he was a member of the Respondent vide membership No. 1328.
That on or about 14. 6.2017, he wrote to the Respondent expressing his desire to withdrawal from it. That contemporaneously he requested for a refund of his shares and dividends.
That upon receipt of the Notice, the Respondent, vide a letter dated 6. 2.2018, requested for a period of two (2) months to process the refunds. That the said period lapsed without him receiving the said refunds. That this prompted him to issue a sixty days’ Notice through his Advocate. That his claim therefore is for a refund of Kshs. 65,000/= being his shares and accruing dividends.
Respondent’s Case
Vide its statement of Defence dated 22. 7.2019, the Respondent confirms that the Claimant was its member but denied the fact that it owed him a sum of Kshs.65,000/= as alleged. That whilst his total contribution to the Sacco amounted to Kshs.65,000/=, a sum of Kshs.20,500/= goes to non-refundable share capital.
That further, the Claimant did not follow the laid down procedure whilst exiting the society. That has such, this claim has been instituted pre-maturely. It then cited the case of Patrick Meeme Lunge –vs- NHIF Sacco Society Limited [2019]eKLR,andMuriithi Mumeu –vs- NHIF Sacco Society Limited [2019]eKLR.
Issues for determination
This claim has presented the following issues for determination:
a. Whether the Claimant has established a proper basis to warrant an order for refund of Kshs.65,000/=.
b. Who should meet the costs of the claim.?
Refund of deposits
At the outset, we have to give a distinction between shares and deposits. Shares Section 2 of the Co-operative Societies Act (Cap 490) Laws of Kenya defines a share to mean
“....the amount represented by a members portion in the equity of a society as a co-owner.”
It follows therefore that a share capital is that portion of a members contribution which goes towards capitation of the society. It is non-refundable. It follows therefore that the Claimant is not entitled of Kshs.20,500/= being his share capital in the Respondent.
As regards the balance of Kshs.44,500/= we note that the Claimant has not denied the same being due and owing. We thus find that the same is refundable.
Issuance of Notice
The Respondent contends that the instant claim is pre-mature as the claimant did not issue the mandatory Notice of 60 days. We have perused the Claimant’s letter dated 14. 6.2017. It is addressed the Respondent’s manager. The pertinent part reads:
“ Please take note; I shall cease to be a member of NHIF Sacco with effect from 15. 8.2017. ” We have also perused the Claimant’s demand letter dated 13. 8.2018. further, we have perused the Respondent’s letter dated 6. 2.2018. For all intends and purposes, we note that vide this letter, the Respondent acknowledged the Claimant’s intention to withdraw from it and even went ahead to make proposals on how to do so. It thus cannot be said that the Claimant has not shown statement of interest to resign.
Conclusion
The upshot of the foregoing is that we enter judgment in favour of the Claimant and as against the Respondent for Kshs.44,500 with costs and interest at court rates.
The Orders herein to apply to CTC.NO. 267/19 to the extent that judgment in this claim is entered against the Respondent for Kshs. 651,580/= plus interest and costs at court rates.
Judgment signed, dated and delivered virtually this 4th day of March, 2021.
Hon. B. Kimemia Chairperson Signed 4. 3.2021
Mr. P. Gichuki Member Signed 4. 3.2021
Mr. B. Akusala Member Signed 4. 3.2021